Archive for the ‘ALIMONY IN MISSISSIPPI – AN OVERVIEW’ Category

ALIMONY IN MISSISSIPPI – AN OVERVIEW

Monday, November 18th, 2019

By Michael Louvier

The subject of Alimony has been often discussed on this site; however, it is always appropriate to review such an important topic.  With that in mind, please allow a few paragraphs to set forth the general guidelines of Alimony.

                The Mississippi Supreme Court set forth the guidelines for an award of alimony in Mississippi divorce cases in the case of Armstrong v. Armstrong, 618 So.2d 1278 (1993).  They are:

  1. The income and expenses of the parties;
  2. The health and earning capacities of the parties;
  3. The financial needs of each party;
  4. The obligations and income of each party;
  5. The length of the marriage;
  6. The presence (or absence) of minor children in the home, which may require that one or both of the parties either pay or personally provide child care;
  7. The age of the parties;
  8. The standard of living of the parties, both during the marriage and at the time of the support determination;
  9. The tax consequences of the spousal support order;
  10. Fault or misconduct of either party;
  11. Any wasteful dissipation of assets by either party, or;
  12. Any other factor deemed by the Court to be “just and equitable” in connection with the setting of spousal support.

This list of criteria, of course, can be found on a myriad of web sites and searches.  That said, I believe it is still useful to spell them out – to have them in plain writing before going forward with any analysis of the “Armstrong factors”.  As always, this medium does not lend itself to an “end all – be all” examination of this or any subject.  Rather, this is meant for you, the reader, to become a bit more educated on the subject matter while allowing me, the writer, to delve topic by topic into some of the real nuts and bolts of domestic relations practice.

I am personally very intrigued by a specific few of the above listed items, more so than the others and they are:  numbers 8, 10 and (almost “of course”) 12.  The use of the word “OR” between 11 and 12 instead of the word “AND” is also very interesting to me.  Let us explore.

I’ll start with number 12.  This provision is commonly referred to as a “catch all” by attorneys.  Whenever the Court uses the phrase “any other factors…”, this is an open invitation for the Chancellor to interpose his or her own beliefs about the case into the decision.  This is not necessarily a bad thing, as there may be something that is revealed in the case that screams for the award of, or the denial of alimony that does not quite fit into the other 11 specific factors.  And the Chancellor’s discretion should always be allowed, to some extent.  After all, the Chancellor is the finder of fact in the case – the Judge and the jury.  Some would argue; however, that this unilateral type of discretion inherently lends itself to grounds for appeal – whichever way the Chancellor decides.  As Voltaire so eloquently said:  “power corrupts, absolute power corrupts absolutely”. 

A Chancellor should never use this last provision as the deciding factor, lest we believe that the possibility of corruption in this important decision be present, or even possible.  Far be it from me to suggest that a Chancellor would favor one side over the other for 11 factors and then choose to employ the catch-all to rule against that party…in fact my cursory research tells me that such a situation has not been reported in Mississippi Courts.  Good.  As it should be. 

Factor number 10 is interesting to me for the simple fact that marital misconduct can give rise to grounds for the divorce itself, without which there can be no claim for alimony in any form.  Therefore, a party found to be responsible for marital misconduct (drug abuse, an adulterous affair, habitual cruel treatment toward the spouse, etc) can be penalized twice: once in the granting of the divorce and again in the award for alimony.   

Factor number 8 is intriguing because we are all aware that financial difficulties leads to many, if not most divorces.  Therefore, if the standard of living that a spouse has become used to during the marriage is the main reason for the breakdown of the marriage; that is, a couple is living well beyond the means of the main bread winner and that causes or contributes to the demise of the marriage, should the bread winner be Ordered to continue to provide that lifestyle for the ex?           

                Finally, the use of the word or at the completion of the list of factors indicates that the Court can Order alimony based on only a few, or perhaps even only one, factor being present.  This is unlike a case where child custody is the issue and the Albright factors are used as a kind of “score card” for the Chancellor to make a decision.  As discussed above, the Chancellor can employ only one factor or maybe a few, to determine whether or not a divorce should be granted and whether or not an award for alimony is appropriate. 

Michael Louvier received a Bachelor of Arts (Political Science) from the University of New Orleans, 1988 and a Juris Doctorate from Mississippi College School of Law, 1994.  He has been married to Tammy Luquette Louvier for 29 years and they have 2 children:  Amy, 25 and Nicholas, 21.